Criminal Defense of Immigrants

(B)  Former Federal Youth Corrections Act.[176]  This analysis should also apply to convictions expunged under the former Federal Youth Corrections Act.[177]  Before IIRAIRA, immigration and federal courts held that controlled substances convictions that had been under the repealed Federal Youth Corrections Act[178]  or its state counterparts[179] are were not deportable offenses, including more serious drug convictions, as well as convictions for simple marijuana possession.[180]  “These holdings should not be altered by IIRAIRA, since they are based on specific federal legislation that was not modified by IIRAIRA.”[181]  While these federal expungements effectively eliminate a conviction for immigration purposes, they do not eliminate the underlying facts, which can still be used to trigger inadmissibility under conduct-based grounds of inadmissibility.[182]  Moreover, the mere fact that a person was sentenced under the Federal Youth Corrections Act is insufficient to neutralize the conviction for immigration purposes; the defendant must actually receive the FYCA expungement.[183]

[176] See Annot., Construction and Application of Provisions of Federal Youth Corrections Act (18 U.S.C.A. § 5021) Authorizing Setting Aside of Youth Offender’s Conviction, 38 A.L.R. Fed. 470 (1978).

[177] Matter of Nagy, 12 I. & N. Dec. 623 (BIA 1968) (federal conviction for transporting stolen vehicle in foreign commerce, in violation of 18 U.S.C. § 2312, resulting in commitment as youthful offender under FYCA, 18 U.S.C. § 5021, did not constitute a conviction for deportation purposes, after defendant had been unconditionally discharged prior to expiration of maximum term, since conviction was thereby automatically set aside and the offender issued a certificate to that effect).

[178] 8 U.S.C. § 5021, repealed effective October 12, 1984, by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473.

[179] Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974); Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974). The Board initially receded from this position in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), and then issued a revised opinion deleting any reference to the former FYCA or existing state counterparts, or to 18 U.S.C. § 3607, the Federal First Offender Act, enacted in place of the repealed Federal Youth Corrections Act.  See D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 4:23 (2007), for detailed discussion of these provisions.

[180] Mestre-Morera v. INS, 462 F.2d 1030 (1st Cir. 1972); Matter of Berker, 15 I. & N. Dec. 725 (BIA 1976), modifying Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 1975). While the Federal Youth Corrections Act and the First Offender Act were repealed by the Comprehensive Crime Control Act of 1984, effective October 12, 1984, the savings clause extended the provisions of the Federal Youth Corrections Act to offenders already sentenced under its terms, or to eligible offenders who had committed offenses prior to the date of repeal, and the effective date of the First Offender Act was amended by Pub. L. No. 99-217, § 4, 99 Stat. 1728 to November 1, 1987.

[181] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 2:13 (2007).

[182] Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (noncitizen deportable as an overstay, but applied for adjustment of status as a defense to deportation, so to be eligible for adjustment, he had to be “otherwise admissible,” but the court found that he was inadmissible based on the facts underlying his expunged conviction).

[183] Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (9th Cir. 1962); Briscoe v. United States, 391 F.2d 984 (D.C. Cir. 1968), later appeal, 432 F.2d 1351 (D.C. Cir. 1970).